April 1, 2016
The Environmental Protection Law (the “EPL”) of the People’s Republic of China (“PRC”) was promulgated more than 25 years ago. But only recently have substantive amendments to the EPL, combined with public awareness and government leadership, provided reason to hope that the EPL can serve its mission to protect China’s environment according to a January 24, 2016 report from Jones Day publishing.
On April 24, 2014, China’s legislature, the Standing Committee of the National People’s Congress, adopted major amendments to the EPL that became effective on January 1, 2015. The revised EPL contains substantive and procedural changes that significantly update China’s environmental legal regime. More importantly, recent enforcement actions demonstrate that the government is determined to do more than change the law on paper.
Harsher Penalties against Polluters and Greater Power for Environmental Protection Authorities
- Consecutive Daily Penalties. Before the amendments, the cost of compliance with the previous EPL was much higher than the cost of noncompliance. According to statistics, the average cost of noncompliance under the EPL was less than 10 percent of the cost of environment rectification. Thus, polluters strategically chose payment of penalties over compliance for the obvious economic benefits.
- Suspension of Business. The revised EPL provides that if a polluter discharges excessive pollutants, the authorities may order the polluter to suspend or shut down its production. In this way, the revised EPL substantially raises the cost of illegal discharging.
- Seizure of Facilities and Equipment. The revised EPL also grants greater power to environmental protection authorities. Article 25 grants competent environmental protection authorities the power to seize facilities and equipment where a polluter’s illegal discharge causes or may cause serious pollution. In furtherance of this new power, the EPA published the Measures for Seizure and Detention which came into effect on January 1, 2015. The Measures define the situations subject to seizure and detention, and they establish the required procedure for implementing these sanctions.
- Administrative Detention. Under the prior EPL, individuals responsible for environmental pollution were subject to legal liability only in the event that violation constituted a crime. Now, under Article 63 of the revised EPL, individuals that commit noncriminal environmental offenses can also be punished with up to 15 days of administrative detention.
- Increased Transparency and Whistleblower Protection. The revised EPL also includes provisions that require companies to provide increased transparency about pollution and protect whistleblowers who report violations.
- Enhanced Accountability. A key factor to the success of the environmental law is to persuade provincial and local officials to seriously enforce its provisions. Under Article 26 of the revised EPL, accomplishment of environmental protection targets will be considered as a factor for government officials’ performance evaluations, and the evaluation results will be made public.
What this means to you
Recent substantive amendments to China’s Environmental Protection Law (EPL), combined with public awareness and government leadership, provided reason to hope that the EPL can serve its mission to protect China’s environment.
MIRATECH can help
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